PALETTA & QUANEY

[2020] FCCA 1616

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALETTA & QUANEY [2020] FCCA 1616

Catchwords:
FAMILY LAW – Application for leave to institute property proceedings out of time – parties entering into informal agreement in 2017 – whether delay in making application adequately explained – whether applicant had reasonable prima facie case if proceedings had been issued in June – whether applicant will face hardship if leave not granted – where amount in dispute if leave granted will likely be wholly or largely consumed in costs – balancing of competing considerations – application not granted.

Legislation:

Family Law Act 1975 (Cth), s.44

Cases cited:

Frost & Nicholson (1981) FLC 91-051

Mackenzie and Mackenzie (1978) FLC 94-496

Whitford & Whitford [1979] 4 FamLR 754

Applicant: MR PALETTA

Respondent: MS QUANEY

File Number: MLC 9644 of 2019

Judgment of: Judge Burchardt

Hearing date: 4 June 2020

Date of Last Submission: 4 June 2020

Delivered at: Dandenong

Delivered on: 24 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Sweeney

Solicitors for the Applicant: Berry Family Law

Counsel for the Respondent: Mr Schmidt

Solicitors for the Respondent: Tree House Legal

ORDERS

1. The application for leave to proceed out of time be dismissed.

2. The matter be adjourned to the Court for Final Hearing at the Melbourne Registry on 11 November 2020 at 10:00am with an estimated hearing time of two days.

3. The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

IT IS NOTED that publication of this judgment under the pseudonym Paletta & Quaney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 9644 of 2019

MR PALETTA

Applicant

And

MS QUANEY

Respondent

REASONS FOR JUDGMENT

Introductory

1. The matter before the Court is an application by the respondent wife (the parties are divorced but it is more convenient to retain this phraseology) for leave to apply pursuant to section 44 of the Family Law Act 1975 (Cth) (“the Act”) for property orders out of time. It is common cause that the parties were divorced in February 2018 and the claim now advanced was first filed on 30 September 2019. It was therefore some six months or so out of time.

2. The application is strenuously resisted. 

3. For the reasons that follow, I propose to dismiss the application for the extension of time.

The materials filed by the parties

1. It is instructive to look at the way in which this matter has unfolded.  On 26 August 2019, the applicant husband filed an application for parenting orders seeking to vary the extant regime whereby the children live with the parents on an 8/6 arrangement in favour of the mother to an equal 7/7 regime.  Relevantly for these purposes his supporting affidavit asserted that separation took place in January 2016 and that “in February 2018, Ms Quaney and I submitted a joint application for divorce”.

2. The wife’s response was filed on 30 September 2019.  She sought to reduce the father’s time essentially to alternate weekends.  At paragraph 17 of her response, she sought “that the Wife be granted leave to proceed with an Application pursuant to Part VIII of the Family Law Act 1975 for spousal maintenance and an adjustment of property between the parties as may be considered just and equitable by this Honourable Court”.

3. In her financial statement filed contemporaneously, I note that the wife deposed to an income of $1,845 per week of which $140 a week was child support paid by the husband.  She deposed that her home was worth an estimated $625,000 with a mortgage of $275,000, a net equity of $350,000.  Her superannuation was said to be $100,000 and she had $10,000 in the bank.

4. The husband filed a further amended application on 31 October 2019, relevantly seeking dismissal of the wife’s application for property or for leave to proceed with the property application.  His financial statement filed contemporaneously asserts an average weekly income of $2,360, a property at A Street, Suburb B estimated at $810,000 (the former matrimonial home) with a mortgage of $370,000.  This of course is equity of $440,000.  His superannuation was estimated at $128,000 and he had $11,000 in the bank.

5. The husband’s affidavit filed 17 January 2020 deposes to his birth in 1981 and that of the wife in 1980.  The parties commenced cohabitation in Country C in 2007 and came to Australia in 2008 where they married in 2008.  Separation was on 30 January 2016 and a divorce order was made on 9 March 2018.

6. The affidavit deposed to the birth of X in 2011 and Y in 2013.  Both are autistic.  The husband deposed his opposition to the wife’s relocating to City D and noted that following the separation by no later than January 2017 the 8/6 regime for time had been in place.

7. The husband went on to depose to an agreement entered into in September 2016 between himself and the wife regarding property settlement and the so-called new parenting arrangements which were to be implemented in January 2017 when settlement was to occur.  The details of the property settlement are set out at paragraph 48 and following of the affidavit.  I note that he has deposed that the wife wrote to him in 2016 to say she had sought legal advice, something that in fact occurred but was untrue. The wife had not sought legal advice.  

8. The husband deposed that the terms of settlement were illustrated by a table.  Essentially, he retained the A Street, Suburb B property at a value of $750,000.  To do so, he borrowed an additional $365,000 on what was at that time a mortgage of $120,000 and she used that to buy the property in which she now lives.  He set out a table of who retained what, which is not, as I understand it, of itself disputed.  He deposed that this was a distribution, 56 to 44 per cent in the wife’s favour and that each party retained their superannuation entitlements which were about equal at the time.

9. The husband also deposed to his having re-partnered with Ms E, who is a health care worker, and asserted that the wife had re-partnered with Mr F, who lives in City D.  There are a number of other matters in the affidavit, but they are not, in my view, of any moment, save that I note that at paragraph 58, the husband deposed:

   In 2017 I paid Ms Quaney a monthly amount of $720, calculated pursuant to the Child Support Estimator, and over and above that I contributed to 50% of all other costs, such as schooling and healthcare.  In 2018 I paid Ms Quaney a monthly amount of $660, and 50% of all other costs.  In January 2019 Ms Quaney sought a Child Support Assessment.  In 2019 I was paying her $141 a week pursuant to that Assessment.  This has recently dropped to $107 a week, as Ms Quaney’s income has significantly decreased.

10. On 3 February 2020, the wife filed her first affidavit.  She deposed the relationship in the same terms as the husband.  I note however, that she put the application for divorce as taking effect on 9 March 2018.  She is a health care worker with an annual salary of approximately $85,000, whereas the husband is a public servant with approximately $123,000.  The affidavit, in part, deals with parenting issues which are not presently relevant, although I note that she the wife does want to move to City D in the course of this year to live with her partner, Mr F.

11. The wife, likewise, tabulates the pool of assets that were agreed to be divided in 2017.  She deposed at paragraph 27 to 28:

27. In late 2016, after approximately six months of negotiating directly with Mr Paletta, I reluctantly accepted a 60/40 division of our matrimonial asset pool in my favour, and equalisation of our accumulated superannuation entitlements, a 9/5 arrangement for the children and child support payments consistent with the child support estimator plus an equal contribution towards all other expenses for the children. 

28. I did not receive legal advice in respect of the terms of our agreement.  I told Mr Paletta I had received advice in an attempt to strengthen my position.  Mr Paletta did not provide any financial disclosure at the time of our agreement.  Mr Paletta and I did not formalise any aspect of our agreement.

1. The wife’s table of the matrimonial possessions is, in the main, not that different to that of the husband.  They both put the value of the matrimonial home as at the time of separation at $750,000.

2. The wife tabulates the party’s superannuation entitlements at separation as being, on her part, $67,470 and on the husband’s part $75,150.  She also refers to a Country C pension but, in my view, the evidence shows that there is no material likelihood that that will ever accrue to the husband.

3. The wife went on to say that she had become aware that the settlement only equated to 55 per cent of the matrimonial asset pool and 41 per cent of the superannuation entitlements.  She went on to assert, at paragraph 32:

   The above outcome was not just and equitable.  As detailed below, neither of us made any overriding contributions to the marriage.  At the time I received the payment from Mr Paletta, I had the primary care of the children and was in receipt of an annual income of approximately of $48,000.  Mr Paletta was in receipt of an annual income of approximately $108,000.

1. I note, that at paragraph 43, the wife deposed to the purchase of the house in A Street, Suburb B, where she now lives, for $595,000 and that the wife has been able, since then, to reduce the mortgage by approximately $28,000.

2. The affidavit goes on to detail the wife’s complaints about child support and, at paragraph 53, deposed:

   Since the administrative assessment has been in place, Mr Paletta has refused to honour his agreement to equally contribute to the children’s other costs.  The children’s expenses have been significant, particularly since Y was diagnosed with ASD in late 2018 and X in late 2019.  I currently pay for all the children’s expenses including but not limited to private health insurance premiums, out-of-pocket medical and dental, school fees, camps, excursions, uniforms and books, extra-curricular activities and equipment, clothes and shoes.

3. She went on to depose to the financial hardship that this lack of payment was giving rise to.  I further note that in the current asset pool set out at paragraph 42 of that affidavit, the wife values her own property at an estimated $600,000, but the former matrimonial home at $920,000.  This is a somewhat striking disparity given that the two properties had been owned for the same time and are in the same suburb.  It appears to be asserted that the wife’s property has scarcely appreciated at all, whereas the former matrimonial home retained by the husband has gone up by 20 per cent.  I find this leap of value unpersuasive.

4. Relevantly, for these purposes, the next matter filed was the wife’s affidavit on 11 March 2020.  She deposed to the reasons for her delay in making the application.  I note, that at paragraph 5, the wife repeats her assertion that the informal settlement included an agreement that the husband would pay periodic child support consistent with a child support estimator, and non-periodic child support equivalent to half of the children’s expenses.  She goes on to depose at paragraphs 6 to 7:

   6. Mr Paletta unilaterally and sporadically changed the amount he paid in child support, and, on occasion, threatened to stop paying child support altogether.  In late 2018, I applied for an administrative assessment because I could not cope with Mr Paletta’s threats, unilateral changes and irregular payments.

   7. Despite the terms of our informal settlement, since the administrative assessment has been in place, Mr Paletta has reneged on his agreement with respect to the payment of non-periodic child support.

1. She went on to depose the financial hardship that this has imposed on her.  She deposed at paragraph 3:

   I was informed by Mr Paletta that the terms of our agreement in respect of property equated to a 60/40 division of our non-superannuation property (in my favour) and an equalisation of our superannuation interests.

1. At paragraph 10, she asserted that:

   I relied on Mr Paletta’s representations in respect of all aspects of our informal settlement in good faith, which I now understand to be misleading and untruthful.  In reliance on those representations, I chose not to reply to this Honourable Court for financial orders within 12 months of divorce order taking effect.

1. On 10 March 2020, Ms G, solicitor for the wife, filed an affidavit giving an estimate for the likely costs of the proceeding.  The likely total of fees still to be generated to get to judgment is some $40,750, of which two thirds could be attributed to the parenting issues alone.  I would infer, therefore, that approximately thirteen and a-half-thousand dollars would be attributable solely to the property issues.

2. There had been a notice to admit facts and a notice of dispute filed, but it is not necessary to turn to those at the moment.

3. The husband has filed a further affidavit on 1 April 2020 dealing with contributions during the marriage and both parties have filed summaries of argument.

The submissions made at Court

1. Both parties agreed that the matter could proceed by way of oral submissions only, drawing on the written submissions already filed.

2. The written submissions of the wife commence, unsurprisingly, with the terms of the statute. Section 44(4) relevantly provides:

   (4)  The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:

   (a)that hardship would be caused to a party to the relevant marriage or a child if leave were not granted

3. The submissions went on to refer, in some detail, to the decision of in the marriage of Whitford [1979] 4 FamLR 754 as to what hardship is. The submissions, then, went on to canvass the approach the Court should take at paragraphs 9 to 13. I do not propose to paraphrase this at part of the written submissions (which, as I said during the currency of the hearing to both advocates, were extremely thorough and helpful) because in truth it is not the state of the authorities and the nature of the test that divides the parties but rather how the facts of this particular case operate upon them.

4. At paragraphs 14 to 17, the written submissions go on to canvas the general discretion the Court has if the hardship criterion is satisfied.  Paragraphs 18 to 19 then deal with the question of delay and the need for the applicant to provide a reasonable explanation.  Paragraphs 20 to 22 canvas the balancing exercise involving prejudice to the respondent. 

5. At paragraphs 25 to 27 the written submissions asserted:

   25. The wife understood at the time that the informal settlement equated to a 60/40 division (in the wife’s favour) of the parties’ non-superannuation property, and an equalisation of superannuation interests.

   26. It is common ground that the informal settlement equated only to a 55/45 division (in the wife’s favour) of non-superannuation property. 

   27. The informal agreement equated to a 41/59 division (in the husband’s favour) of superannuation interests.  This is also common ground.

1. The written submissions note the husband reneged upon his agreement with respect to non-periodic child support following the administrative assessment for which the wife applied in late 2018.  The written submissions go on to canvas the proposition that the wife has a reasonable prima facie case in the range of 65 to 75 per cent of the non-superannuation property and approximately 50 per cent of the superannuation accrued by the parties during the period of cohabitation.

2. The written submissions of the husband commence by asserting that the application is out of time.  It is asserted that there is no hardship that the wife can demonstrate to justify granting leave and that in any event the evidence that the applicant seeks to rely upon is not sufficient to justify the costs concerned.

3. The summary of argument points to the existence of the informal agreement.  It is noted at paragraph 3 that the Court is not precluded from making an order following such an agreement, but that the agreement is a highly relevant consideration.  The assets of the parties are set out as at separation.  Unsurprisingly, the written submissions refer at paragraph 8 to the judgment of Frost & Nicholson (1981) FLC 91-051 (“Frost & Nicholson”) where the Court observed that the husband would be, “faced with an action which he or she had no reason to expect or had been led to believe which would not be brought.”

4. The written submissions place emphasis upon the prima facie significance of the period of time stated in the Act and go on in some detail to analyse the circumstances of the parties both during and after the relationship in such a fashion as to conclude that in any event there would be no likely adjustment to the wife in any event. The submissions emphasise that the amounts in contention (paragraph 22) are likely to be roughly commensurate with what the parties will spend in arguing about them. The submissions complain of the lack of proper explanation of why the wife had not sought to bring her case earlier.

5. Although I have paraphrased the submissions broadly, I bear them well in mind and I repeat that the written submissions of both counsel, and indeed their oral submissions, were extremely helpful.

The submissions of the counsel for the wife

1. Counsel was essentially content to rely upon his written submissions.  He submitted the wife did not know what the husband’s financial position was at the commencement of the relationship.  He had deposed to having 11,000 in a bank account in 2007 and this was accepted.  The wife’s case was that the husband had the 11,000 and she had $5,000.  She inherited $10,000 late in the marriage and applied it to the mortgage.  The husband’s inheritance came after the informal settlement was reached.  It could not be taken as a contribution.  It was a long relationship, 10 years, and the husband would not be assessed as having higher than 50/50 in respect of contributions.

2. In respect to future needs, the children have special needs.  The additional child support was part of the deal.  The husband has re-partnered.  The wife intends to re-partner if she relocates.  Counsel pointed to the parties’ superannuation at the date of separation set out in paragraph 29 of his client’s affidavit of 3 February 2020 which showed $67,472 to the wife and $75,150 to the husband.

The submissions of counsel for the husband

1. Counsel referred to the notice to admit and notice of dispute.  From this it was undisputed that cohabitation took place in 2007 and separation in January 2016.  The agreement was entered into in September 2016 and implemented in January 2017.  The wife said she had legal advice but this was not true.  The husband had applied to change the 8/6 regime to 7/7 and this had provoked the property response. 

2. There was no explanation for the delay in applying.  The wife refers to paragraphs 13 to 21 of her first affidavit, but these might not matters of change.  The wife has to show hardship, not future hardship.  Counsel referred to the case of Mackenzie and Mackenzie (1978) FLC 94-496 at 77,580 (“Mackenzie”) where Strauss J said relevantly:

   The onus resting on an applicant is not discharged by showing merely that hardship might be caused, if leave were not granted.  Further section 44(4) inhibits the granting of leave unless the applicant has made out the requisite case, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused by the refusal to grant leave.

3. Counsel submitted the costs involved in this case would be more than the wife might receive.  The wife would get 60 per cent of the property the parties had at the time.  Both are the professional persons.  There is an 8/6 regime in any event.  The pool was only some $700,000 to $800,000 at separation and 10 per cent of that would be $70,000.  The wife says that would be a cost of only $28,000 if property only was dealt with but this was artificial.  It is three and a-half years since the agreement and the husband’s superannuation has gone up.  He believed the matter had settled.  The husband pays child support as assessed.

1. In the notice to admit it was agreed that the husband’s super as at June 2016 was $66,000 and the wife’s was $61,993.  This was not much of a difference.  The wife submits that she might get 75 per cent of the property which would be three times more than the husband.  This would not occur.  The wife’s affidavit of 13 March 2020 does not provide an explanation for the delay.

2. Counsel for the wife in reply emphasise the misrepresentation by the husband as to the pool and percentages.  The delay was one of six months from one year after the divorce.  The costs estimate was realistic.

Consideration

1. In Frost & Nicholson, a case to which both counsel referred me, the head note, which in my view accurately paraphrases the text of the judgment relevantly asserts:

   Held:

   (a)The wife had to establish –

   ·A reasonable prima facie case for relief had she instituted proceedings in time;

   ·That denial of her claim would cause her hardship;  and

   ·An adequate explanation as to her delay.

   (McDonald & McDonald (1977) FLC 90-317 applied)

   Even if those three elements are satisfied, the Court should still, in determine whether to exercise its discretion in granting relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application.

   (b)As to “hardship”, there should be a “substantial detriment”. What amounts to a “substantial detriment” will depend on the circumstances (Mackenzie & Mackenzie (1978) FLC 90-496 considered).

2. In this case the starting point for the wife’s case is that she was misled by two misrepresentations made by the husband at the time the agreement was originally entered into.  First, she was told it was a 60/40 division when it was not.  Second, she was told that the husband would pay not only child support at the level calculated by the relevant child support instrument but also 50 per cent of all additional other costs.

3. It is common cause that the distribution was not 60/40.  Plainly, the asserted 60/40 division was only notional in relation to superannuation because no superannuation splitting order was ever made.  The difference between the parties’ superannuation at the time was on the notice to admit facts something of the order of $4,500 leading to an adjustment of approximately $2,000 or so in the main part of the deal, so to speak.  It is not on any view a matter of any great moment.

4. What is clear is that when the wife applied for an administrative assessment of child support in 2018 the husband promptly stopped paying the additional child support that he had been paying up to that time.  He has gone back on his word quite clearly.

5. This, however, is not on any view of the matter in any way decisive, as is the fact that the wife obtained it would seem some 4 to 5 per cent less than 60 per cent of the total pool.  The value of the pool being at the time being approximately $710,000, each 1 per cent was worth approximately $7,100.  4 per cent would be $28,000 and 5 per cent would be $35,500.  The wife actually received a cash payment of $365,000 which perhaps puts this amount in perspective.

6. The test, of course, is whether the wife would suffer hardship if she was not permitted to bring the claim.  It is clear, of course, that it is not the right to bring the claim the loss of which constitutes hardship.  It has to be the consequences thereof.

7. Turning to the first matter denoted in Frost & Nicholson, namely, whether the wife has a reasonable prima facie case for relief had she instituted proceedings in time, I think that on a narrow balance she probably has. 55 or 56 per cent after a medium-length relationship of 9 or so years, with her having the predominant, albeit not by much, care of the 2 disabled children, taken in conjunction with her unquestionably lower earning capacity than the husband, might well be thought to have given rise to a 60 to 65 per cent adjustment.

8. It should be noted that the exercise with which the Court is concerned in considering property adjustments is to produce a judgment that is just and equitable.  This inevitably means that there is a range within which the evaluative assessment that the Court undertakes might properly produce.  One thing I would say, however, is that the notion that the wife would have received 75 per cent, or three times more than the husband, is plainly unsustainable.

9. Nonetheless, and accepting the submission by counsel for the wife that at this stage of analysis one must take her evidence as being capable of being made out (apart from the unexplained and gigantic leap asserted as to the value of the former matrimonial home), I think that she might have had a reasonable prima facie case had she issued in time to have done better than she did in the outcome that obtained.

Will the denial of the claim cause the wife hardship?

1. The wife’s circumstances are in a state of flux.  She wishes to move to City D to be with her new partner.  If she is permitted to do so, it is reasonable to suppose that their financial circumstances will be consolidated.  She will either be able to rent out her former home or to sell it and no doubt comingle her finances with her new partner, of whose circumstances we know very little, save that he is in permanent employment.

2. The wife has deposed that her finances are now under considerable strain because of the husband’s failure to pay his half-share of additional children’s expenses.  There is, however, no evidence as to how much these expenses are, and I note that the husband pays child support as assessed.  It is not possible in these kind of evidentiary circumstances to make findings with any great level of confidence, but as with the prima facie case aspect of the matter, I think that the wife probably just about gets across the line.  In paragraph 53 and 54 of her affidavit:

   53. The children’s expenses have been significant, particularly since Y was diagnosed with ASD in late 2018 and X in late 2019.  I currently pay for all the children’s expenses including but not limited to private health insurance premiums, out-of-pocket medical and dental, school fees, camps, excursions, uniforms and books, extra-curricular activities and equipment, clothes and shoes. 

   54. Mr Paletta’s refusal to contribute has placed me under enormous financial pressure.  I have tried to keep up with everything and work hard to make ends meet.  Since September 2019 I have only been receiving $107 each week in periodic child support payments from Mr Paletta.  My cash savings have almost been depleted and I have recently had to increase my home loan by $50,000 to ensure I have enough money to meet expenses moving forward.

3. In the light of Ms G’s affidavit, I would, I think, reasonably infer that the perhaps predominant part of the funds that the wife proposes to meet moving forward will be the legal costs of getting to judgment in this case.

4. Nonetheless, given that it is clear the husband has indeed reneged on one of the promises he made at the time of the settlement, namely, to pay the additional child support costs, as I say, I think the detriment to the wife is sufficient to meet the descriptor in Frost & Nicholson, quoting his Honour Strauss J in Mackenzie:

   What amounts to a substantial detriment will depend on the circumstances of the applicant or a child of the marriage.

5. That test seems to me, albeit marginally, to be satisfied here.

The explanation for the delay

1. On her own case, the wife knew by late 2018 that the husband was not honouring his obligation to pay the additional child support costs.  Indeed she knew well before that that he was not complying with his obligations, because it was his failure to do so that provoked her to seek the administrative assessment in late 2018.  I find the wife’s explanation for her delay completely unconvincing; the property application has all the air of being a knee-jerk response to the husband’s application to change time from 8/6 to 7/7 and to oppose her application to relocate to City D.  Even if that contiguity is not in fact the reason for the application, in any event, as I say, the explanation for the delay is thoroughly unconvincing.

Whether the parties will spend more than they are arguing about

1. The pool, as it presently stands, is in my view that set out at paragraph 15 of the husband’s written submissions.  The net pool appears to be approximately $750,000.  The husband’s superannuation is now worth $124,000, and that of the wife $105,000.

2. Given that the increase in the husband’s superannuation is an entirely post-separation matter, I would doubt that the wife would be able to do much to claim more than what divided them at the time of separation.  That was only a trifling amount.

3. Assuming, therefore, that the amounts seriously in dispute would be somewhere in the range of $75,000 (conceivably, I suppose, $100,000 if the wife relocated to City D and the husband’s time is reduced), it is immediately apparent that the parties will, on the estimate given by Ms G, be very substantially consumed by the litigation itself.  It is not possible to be precise, but a complete re-agitation of the property issues would be likely, in my view, to very substantially add to the time, complexity and cost of the proceedings. 

4. I tend to the view, even accepting that precision is impossible, that the apportionment of additional costs by Ms G is unduly conservative.  There is a very real risk that the parties would between them spend more than they are arguing about, or in any event a very substantial proportion of it.

Detriment to the husband

1. There is nothing particularly pointed to in the husband’s materials to suggest that he has acted to his detriment in reliance upon the implementation of the agreement.  I note that his superannuation has gone up substantially, and he may have improved his financial circumstances more generally.  He is in what appears to be a committed relationship, and although I accept that there is no question of taking into account his partner’s earnings, the fact is that there must be some chance that this new relationship will eventually lead to some comingling of resources.  This is the normal course in human affairs, although it is not universal.

2. Nonetheless, I also note that the wife’s case is that the husband was niggly and mean and excessively money-conscious during the relationship.  It is reasonable to suppose that to the extent to which, and his mortgage appears to have gone down from $485,000 to $361,000, this owes nothing to the wife’s input whatever.  To seek to make the husband account in a property settlement now for his successful thrift would in my view be thoroughly unfair.  He has conducted his business affairs for the last three and a half years on the footing that the deal was done, and to wind him back, as it were, against his benefit would in my view be, in the particular circumstances of this case, extremely unfair.

Conclusion

1. As I have already indicated, I think the wife does, albeit only narrowly, satisfy the Court that she has a prima facie case that she would be entitled to relief had she commenced proceedings within time.  For the reasons I have given, however, I think that such a dispute would have related only to something in the range of about $75,000, this being an additional 10 per cent of the pool as it stood at the time of separation. 

2. Having said this, the wife would nonetheless face considerable hurdles in seeking to agitate matters on the basis of the pool as it now stands.  Such changes as there have been are wholly post-separation contributions, and while the general rule is that the Court takes the property of the parties as at the date of trial, in these particular circumstances I do not think that the wife would be likely to be successful in this regard.

3. For the reasons given, I accept that the wife does, once again albeit narrowly, satisfy the Court that there would be hardship were she not permitted to bring the claim. 

4. The Court, being satisfied that hardship would be caused if leave were not granted, retains a discretion as to whether to grant leave or not.  That discretion must be exercised judicially.  This involves consideration of all of the relevant matters. The explanation for her delay is unsatisfactory, and I think that to allow the matter to be re-agitated, notwithstanding the husband’s unattractive resiling from his representation as to additional child care costs, would not be just and equitable. Not only are the matters I have described in relation to the delay and to the prejudice to the husband militate against a grant of leave, the truth is that the parties would be litigating about an amount where their costs of such litigation are likely to be either greater than or at the very least form a very substantial part of the quantum they are disputing.  This last factor is in my view, even of itself, decisive. 

5. It follows that for these reasons, the application for leave to proceed out of time will be dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 24 June 2020